Laws

Update: NEAVS, the North American Primate Sanctuary Alliance (NAPSA), the Laboratory Primate Advocacy Group (LPAG), and the Animal Legal Defense Fund (ALDF) submitted a Rulemaking Petition to the USDA asking the agency to adopt stronger standards under the AWA to promote the psychological well-being of primates used in research. To read the full petition, please click here.

The concept of psychological well-being does not lend itself to precise definition. Facilities are allowed latitude in how they meet the requirements, as long as they achieve the desired results or outcomes. Therein lies the problem, as no one has defined the results desired in terms of something that can be easily observed and recognized.

Some facilities claim their environment enhancement programs are adequate because there are no distressing behaviors or appearances of ill health with their primates. This is a short-sighted view since waiting to improve a minimally enriched environment until a primate starts showing signs of psychological distress was not the intent of the Animal Welfare Act.

—Final Report on Environment Enhancement to Promote the Psychological Well-Being of Nonhuman Primates
Authored by the Primate Environment Enhancement Team (July 15, 1999)

The proposed regulations generated a firestorm of criticism from the biomedical community who complained about the costs and practicality of improving conditions. Although the policy was created by its own staff with concerns they deemed “urgent,” the USDA has never finalized the policy or commented on why it has been stalled.

Animal protection plaintiffs file suit

On June 22, 2003, after years of waiting, the law firm Meyer, Glitzenstein & Crystal brought suit on behalf of several plaintiffs—animal welfare organizations and individuals concerned about the well-being of nonhuman primates—on the grounds that the USDA’s failure to make a final decision on its draft policy violates the Animal Welfare Act and the Administrative Procedure Act. (2)

Instead of addressing the merits of the case, the USDA filed a motion to dismiss the case on jurisdictional grounds, which was granted by a California district court. Plaintiffs filed an appeal of that decision to the Ninth Circuit Court of Appeals. (3) On November 22, 2006, the federal appeals court reinstated the lawsuit and ordered the lower court to review the case. (4)

The background: AWA required improvements

In 1985, Congress passed an amendment to the Animal Welfare Act that required the USDA to mandate minimum requirements for research facilities to provide “a physical environment adequate to promote the psychological well-being of primates.” (5)

“The statement that, “Infants should not be permanently removed from the care giving parent(s) before an age that approximates the age of infant independence in nature” may be impossible for research settings where the protocol may dictate the age of removal. In the wild, infants of many species may stay with mothers until 4-6 years of age.”*

—David Martin
DuPont Pharmaceutical Company

Not until 1991 did the USDA add a few pages of regulations to the Animal Welfare Act. (6) Most primate experts and former lab caregivers agree that the language is highly unsatisfactory to ensure the welfare of nonhuman primates.

In 1996, an anonymous survey of USDA/APHIS inspectors identified their own numerous concerns and issues with the existing regulations. (7) In response, the USDA formed a Primate Environment Enhancement Team that included several veterinarians, an APHIS inspector, an anthropologist, and others. (8)

The team spent one year reviewing primate literature, professional journals, and reference guides, and incorporated feedback from the 1996 APHIS inspector survey. They produced a final report that was the basis for the draft policy. (9)

The report stated: “The urgency of these problems or issues raised by their colleagues motivated the members of the Primate Environment Enhancement Team to move forward with the design of a conceptual model and policy.” (10)

USDA staff criticisms of the existing law

Many of the opinions expressed by USDA/APHIS inspectors in the 1996 survey centered around a lack of clarity, specificity, and a perceived lack of enforceability. (10)

A full half of the responding inspectors felt that the criteria in the regulations were not adequate for facilities to understand how to meet them and for inspectors to judge whether a facility was in compliance. (11)

The USDA’s Primate Environment Enhancement Team reported:

“Some inspectors said they had the impression that the only legally necessary condition for compliance was the existence of the document itself, regardless of its contents. A few commented that once the facility’s attending veterinarian approved a plan, it was problematic to enforce additional requirements, even if that plan was very poor.” (12)

According to the report: “A common refrain among inspectors was that too many enhancement programs consisted of only one or two types of enrichment, such as feeding of treats or provision with a simple rubber toy, in an otherwise barren, stimulus-poor environment.” (13)

The vague language regarding performance standards in the regulations gave inspectors little to no legal standing to enforce compliance.

Inspectors said they often did not cite the above situations as noncompliant in inspection reports, although they believed the situations were not in accordance with the intent of the Animal Welfare Act, because they believed the Agency could not or would not support them. (14)

A majority of inspectors surveyed indicated that their jobs would be clearer if the regulations were better defined. They also wanted more training, and the ability to better enforce the regulations. (15)

The report reads:

Questionable implementation of the facility plans: the inspectors voiced difficulty in identifying whether the plan was truly implemented.

Low levels of appropriate social grouping: some inspectors noted that there were too many individually housed primates, especially at research labs and small exhibitors; reasons given for this often reflected the convenience of the owners and were not in the best psychological interest of the animal.

Practices that perpetuate socially incompetent individuals or abnormal behavior: such as removing infants too early from their mothers. (16)

Draft policy improvements

The new proposed policy provides more specific language for the minimum requirements regarding the natural needs of nonhuman primates. For example, it includes a list of housing options in a hierarchy of preference and provides details regarding nesting materials (like hay or blankets), sight barriers (so individuals can avoid frightening situations), and toys.

The draft policy identifies five areas that are crucial to creating environments to promote healthy psychological well-being of nonhuman primates:

social grouping

social needs of infants

structure and substrate

foraging opportunities

manipulanda (objects that can be moved, used, or altered in some manner by the primate’s hands)